22 Or. 142 | Or. | 1892
The question presented for our determination arises upon the sufficiency of the facts to show whether or not the defendants are entitled to hold the office of bridge committee and to exercise the functions thereof. The aim of the proceeding is to test the constitutionality of the method provided by the act, (Laws, 1891, 633,) commonly known as the Meussdorffer Act, for the appointment of the bridge committee. It is insisted that the facts alleged
It is claimed that the two judges of the circuit court, no matter whether they are referred to in the Meussdorffer Act as individuals or judicial officers, are persons charged with official duties under the judicial department of the government, as the members of the legislature are under the legislative department, and that this constitutional provision prohibits the legislature from conferring upon such judges, and such judges from exercising, the power of appointment conferred by the act, and hence such act, and all appointments under it, are void. There can be no doubt that there are authorities to the effect that the exercise of the power of appointment to office is an executive act, and that being such the power cannot be exercised by the legislature or judiciary under a constitutional provision distributing the powers of government into three separate departments libp our own. But this question, although not directly passed upon by the court in Biggs v. McBride, 17 Or. 640, nevertheless received a good deal of its attention. The point was there made that so much of the act creating the offices
But it is argued that if it be conceded that Biggs v. McBride, supra, established the principle that the legislature, in the appointment of the railroad commissioners, had not encroached upon the executive department of the government, they were state officers, charged with official duties to be exercised for the benefit of the state at large, and appointed for a fixed term, while the members of the bridge committee, provided for by the Meussdorffer Act, are municipal officers, or a municipal board of local authority, in which the state generally has no interest and appointed for an indefinite term. Hence, it is claimed, even though the legislature may exercise the power to appoint such state officers of general authority, that it has not the power to make appointments to fill municipal offices for an indefi
In commenting upon that case, Thayer, J., said: “ The question involved in that case is very similar to the one here, and the language of the court expresses the view we entertain regarding it,—that the members of the water committee are no more than agents of the city, required by the act to carry out its provisions, as was said in that case regarding the commissioners to build the court-house.” Within the principle here decided, the vice of the argument for appellant lies in assuming that the members of the bridge committee are officers. Counsel proceed upon this hypothesis, but contend that being municipal officers of local or limited authority, their appointment by the legislature cannot be sustained; for their duties are not such as to affect the state at large, and cannot, therefore, be upheld, as in the case of the appointment of state officers to discharge duties in which the general public are interested. Moreover, if the members of the bridge committee are not officers but agents appointed to carry out the provisions of the act, the argument can have no application. In the absence of constitutional restrictions, the power of
Nor is the authority given by the act to the two judges of the circuit court to appoint the members of the bridge committee even considered as officers, without judicial precedent to sustain it, as not in conflict with section 1 of article 3 of our constitution. In Illinois there is a like provision substantially. (Art. 3. Ill. Const. Starr & Curtis Stats. 109.) In People v. Morgan, 90 Ill. 558, the power of the judiciary to appoint certain officials, whose duties are not strictly judicial, or even connected with the business of
In People ex rel. v. Hoffman et al. 116 Ill. 587; 56 Am. Rep. 793, it was held that section 1, article 2, of the election law of 1885 for cities, etc., which provides for the creation of a board of election commissioners, consisting of three members, and directs that they be appointed by the county court, is not violative of that provision of the constitution dividing the powers of government into three departments, and prohibiting any one of such departments from exercising powers properly belonging to either of the others. It was there urged that the appointment of the commissioners could not be conferred upon the county court, because such appointment involves an exercise of political power, while the functions of the county court are exclusively judicial. But Magruder, J., said: “The reasoning in People v. Morgan shows that it was never intended to vest in the
A statute of the United States authorizes the circuit courts of the United States to appoint supervisors of elections in certain cases and under certain conditions therein specified. In Ex parte Seibold, 100 U. S. 871, the point was made that the United States circuit courts had not the power to appoint supervisors of election, on the ground that the duties of such courts were judicial, while the supervisors of election were officers whose duties were executive in their character. But the court held otherwise, Mr. Justice Bradley saying: “It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such office appertain. But there is no absolute requirement to this effect in the constitution; and if there were, it would be difficult in many cases to determine to which department an office properly belonged. Take that of marshal, for instance. He is an executive officer, whose appointment is in ordinary cases left to the president and the senate. But if congress should, as it might, vest the appointment elsewhere, it would be questionable whether it would be in the president alone, in the department of justice, or in the courts. The marshal is preeminently the officer of the courts; and in case of a vacancy congress has,
But independent of these considerations, the power to appoint the bridge committee may be upheld on the ground that the two judges of the circuit court for Multnomah county in performing this duty act as individuals and not as judges. This conclusion the court thought in People ex rel. v. Morgan et al. supra, might be drawn from the act authorizing the circuit judges of Cook county to appoint park commissioners; Walker, J., in speaking for the court, saying: “ The power might, no doubt, be sustained on the ground that its exercise is the act of the individual and not the performance of an official function; that the act referring to the judge was only intended to apply to the person who filled the office at the time when the appointment was required to be made, whether it should be the same or a different person, thus being the individual act of the incumbent. * * * So that whether the appointment of these park commissioners be the exercise of a judicial, ministerial, or other function,—whether it be the act of the officer as such, or as an individual,—we are of the opinion that the power was well conferred and might be properly exercised by the circuit judge.”
In view of these considerations, our decisions and those of other courts, and the power exercised by the legislature in making a certain class of appointments, almost coeval with the constitution, it is immaterial whether the appointment of the members of the bridge committee by the judges be considered the exercise of a judicial, ministerial, or other function, or it be the act of the judges as such, or as individuals, or whether the members of the committee be considered as agents of the city and not officers, the result is the same, and affirms the validity of the act granting the power.